[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

to represent these other companies, Messina for all intents and purposes was representing
Bouchard and Eklof, as he was conducting joint negotiating sessions for those companies
and his other four New York clients. On November 5, 1987, Maritrans executives
discussed with Pepper attorneys, inter alia, Maritrans’ plans and strategies of an aggressive
nature in the event of a strike against the New York companies. Less than one month later,
on December 2, 1987, Pepper terminated its representation of Maritrans in all matters.
Later that month, on December 23, 1987, Pepper undertook the representation of the New
York companies. Then, on January 4, 1988, Mr. Pentima joined Pepper as a partner and
brought with him, as clients, Bouchard and Eklof. In February, 1988, Maritrans filed a
complaint in the trial court against Pepper and Messina. . . .
I. Actionability and Independent Fiduciary Duty at Common Law of Avoiding Conflicts of
Interest — Injunctive Relief . . .
Activity is actionable if it constitutes breach of a duty imposed by statute or by common
law. Our common law imposes on attorneys the status of fiduciaries vis à vis their clients;
that is, attorneys are bound, at law, to perform their fiduciary duties properly. Failure to so
perform gives rise to a cause of action. It is “actionable.” Threatened failure to so perform
gives rise to a request for injunctive relief to prevent the breach of duty.
At common law, an attorney owes a fiduciary duty to his client; such duty demands
undivided loyalty and prohibits the attorney from engaging in conflicts of interest, and
breach of such duty is actionable. As stated by the United States Supreme Court in 1850:
There are few of the business relations of life involving a higher trust and confidence than those of attorney and
client or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the
law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in
a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to
the detriment or prejudice of the rights of the party bestowing it. Stockton v. Ford, 52 U.S. at 247. . . .
Adherence to those fiduciary duties ensures that clients will feel secure that everything they
discuss with counsel will be kept in confidence. . . .
III. Scope of Duties at Common Law
. . . Attorneys have always been held civilly liable for engaging in conduct violative of their
fiduciary duties to clients, despite the existence of professional rules under which the
attorneys could also have been disciplined.
Courts throughout the country have ordered the disgorgement of fees paid or the
forfeiture of fees owed to attorneys who have breached their fiduciary duties to their clients
by engaging in impermissible conflicts of interests. . . .
Courts have also allowed civil actions for damages for an attorney’s breach of his
fiduciary duties by engaging in conflicts of interest.
Courts throughout the United States have not hesitated to impose civil sanctions upon
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